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New state rules seek to tighten doctor discipline

More disclosure for licensing boards

Regulatory changes

• Public Act 95 (Senate Bill 575) requires a minimum of three board members to review every allegation. Before, a board chairman had the power to make decisions without consulting other members. The act also prohibits board members testifying as paid expert witnesses in malpractice suits over allegations that may later come before the board to investigate.

• PA 96 (SB 576) requires board members to disclose conflicts of interest exist between them and the health care providers they are investigating.

• PA 97 (SB 577) includes provisions that:

(1) Automatically and permanently revoke the license of a health professional found guilty of criminal sexual conduct against a patient;

(2) Failure to notify the Michigan Department of Licensing and Regulatory Affairs of a criminal conviction or disciplinary action may result in administrative action;

(3) Remove community service as a possible penalty for most violations;

(4) Require a fine of at least $25,000 if a violation resulted in a death;

(5) Require license suspension for at least 180 days for any offense or revoke the license for an offense committed within two years after a previous offense of the same kind.

• PA 98 (SB 578) includes provisions that:

(1) If the department determines that an action taken by a subcommittee does not protect the health, safety and welfare of the public, it can, with approval of the licensing board chair, issue a different action;

(2) Require that beginning July 1, 2015, the department must include on its website each decision where disciplinary action is taken.

Source: Michigan Legislature

New state regulations that take effect July 1 aim to eliminate the ability of chairs of the Michigan Board of Medicine and 26 other health-licensing boards to unilaterally end investigations of physicians, nurses and other health care professionals.

The regulations now require the review and approval of at least three board members to authorize or stop a state licensing investigation.

Under the new rules, the Michigan Department of Licensing and Regulatory Affairs can also overrule the decision of a health-licensing board's disciplinary subcommittee, if the board chairman agrees public health and welfare are in jeopardy. The department investigates alleged licensing violations, but current law gives the disciplinary subcommittee final say on whether a provider's license is suspended, revoked or modified.

The codes in Senate Bills 575 through 578 — co-sponsored last fall by Sens. Tonya Schuitmaker, R-Lawton, and Rick Jones, R-Grand Ledge — were signed into law April 4 by Lt. Gov. Brian Calley.

"We will now have the tools in place to effectively hold those people accountable and make sure that they do not pose any more danger to the public," Schuitmaker said.

The rules affect more than 400,000 professionals in 27 boards. Professionals include acupuncturists, audiologists, massage therapists, social workers, physician assistants and pharmacists.

The changes are aimed in part at preventing licensing board chairs from stopping investigations because of conflicts of interest.

They emerged in response to evidence that a former Michigan Board of Medicine chairman, George Shade, dismissed two investigations into Robert Alexander, a doctor who ran an abortion clinic in Muskegon shut down in 2012 by the Muskegon Fire Prevention Bureau for multiple violations of public health codes.

After Alexander was released from federal prison in 1990 for illegally selling controlled substances to patients, Shade wrote letters to the medical board in support of allowing Alexander to get his license back and helping him get a job at a Detroit hospital, according to news reports.

While some have called for more thorough and timely investigations of providers when complaints are lodged, the new regulations are not expected to increase the number of investigations of medical providers, said Carole Engle, director of LARA's Bureau of Health Care Services.

"We have made some internal changes to gather a lot of information before the case goes before the board for review," Engle said. "Once we started doing that, gathering patient records and other additional information, it gives the committee better information, and the actual number of actual investigations has gone down."

Engle said LARA will continue to fully investigate complaints if the various board subcommittees authorize them.

In Senate hearings last fall, testimony included information that at least one complaint was lodged in 2011 against Oakland County oncologist Farid Fata, who is in jail on charges he defrauded Medicare and prescribed unnecessary chemotherapy to patients who didn't have cancer.

Engle confirmed the department investigated an allegation against Fata. She said the investigation, which is confidential, did not result in an administrative complaint to bring before the Michigan Board of Medicine.

News reports said the complaint was filed by oncology nurse Angela Swantek of Shelby Township, who was interviewing for a job with Fata's Michigan Hematology Oncology Centers and while doing so saw improper mixing of chemotherapy drugs and patients being mistreated.

Under licensing rules, once LARA receives a complaint, it conducts an initial inquiry to present information on the case to the various health-licensing boards, Engle said.

The new rules will require three board members to ask LARA to conduct a full investigation into the allegations against a licensed health provider. The investigation could result in an administrative complaint.

A hearing is then held before an administrative law judge. The judge then issues recommendations to the board disciplinary subcommittee, which decides to either reject the findings, or accept them and determine penalties.

Engle said LARA asked Schuitmaker and Jones to add a legislative provision that gives the department the authority to overrule a decision of a provider board's disciplinary subcommittee if the board's chairman concurs.

"We asked for that change," said Engle, "for the simple reason there have been occasions the department doesn't agree with sanctions or decisions made by the disciplinary subcommittee."

Engle said there could be times when the department might want harsher sanctions.

"The department has ultimate responsibility (for public health), and 99 percent of the time (the disciplinary subcommittee) does an outstanding job," Engle said. "But it is possible they could miss the boat and there could be a significant public outcry."

Under the new regulations, the state has 30 days to challenge a disciplinary recommendation by a board subcommittee.

David Rogers, an attorney with Rogers Mantese and Associates in Farmington Hills, thinks the new regulations give the department too much power.

"Even with board chair concurrence, this undercuts the (the subcommittee's authority ... because ultimately (the department) needs to convince only the board chair to get the decision it wants," Rogers said.

"Presumably this convincing could be done behind closed doors, without giving the (license holder) the ability to respond or to have any input at all," said Rogers, who regularly represents physicians, nurses and other providers in licensure actions.

Rogers said he would prefer the department to appeal to the full licensing board if it disagrees with a disciplinary panel's decision.